Ratifying Error is Not Good
Marco Vargas appealed his sentence after a jury found him guilty of fraudulently obtaining federal worker’s compensation benefits and stealing government property.
He was working as a civilian employee on an air force base when he amputated his left thumb and severed tendons on his other fingers with a circular saw. He filed for compensation, reporting that the accident occurred while he was installing a fire alarm. This was false. An investigation revealed that it happened while he was shaving down copper wire that he had stolen from the base.
In imposing a 51-month sentence, the district court relied on a PSR that had calculated his total offense level as 22 and his criminal-history category as I. The PSR had applied a 14-point enhancement because the intended loss, it said, exceeded $550,000.
Vargas argued that the district court procedurally erred by miscalculating the Guidelines range. While the general rule is that the greater of the actual or intended loss be applied, there is a special rule for government benefits. The district court had concluded that the loss attributable to Vargas’s crime was $850,438.27—a sum representing the total amount of benefits that he would have received if he had received them until the age of 80. Vargas argued that the district court had failed to apply the special rule regarding government benefits.
The Fifth Circuit punted: “We therefore decline to resolve the relationship between the general rule and the government-benefits rule today. Even if we assume that the district court erred in its application of the Guidelines, we are not persuaded that the error was ‘clear and obvious.’” It held the district court did not clearly err in applying the general rule in the case. It said the Government’s trial witness who testified about payments went unchallenged. Counsel for Vargas had declined to cross examine the witness about her methodology and failed to introduce any evidence to refute the basis for the calculation of the intended loss. Vargas’s counsel had also filed a memorandum stating “the Presentence Investigation Report properly calculates Vargas’' total offense level as a 22.” Based on this evidence, “it was not clear and obvious error for the court to infer that Vargas intended to receive benefits to which he was not legally entitled to for as long as he could.”
Judge Elrod concurred only in judgment. She said that the majority opinion only added confusion to the court’s overall government-benefits rule.